@JUDGMENTTAG-ORDER
S.C. Dharmadhikari, J.@mdashBy this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the concurrent orders passed at an interlocutory stage by the Cooperative Court and the Maharashtra State Cooperative Appellate Court Mumbai. The Trial Court in a dispute which was filed, being CC-I/08/12, has passed an interlocutory order which is in the following terms:-
(a) that the petitioner who is respondent No. 1 shall hand over vacant and peaceful possession of the flat on the first floor of the building bearing No. 21 within a period of one month from the date of the order, i.e. 21st June 2012.
(b) If the petitioner fails to hand over vacant and peaceful possession, then, the Advocate who is appointed as private receiver shall take possession from the petitioner and hand it over to the first respondent society-original disputant.
(c) The petitioner was to be given 15 days advance notice by the Receiver. Thereafter the Receiver was to make a report to the Court regarding compliance. The charges of the Receiver were to be paid by the first respondent society-disputant before the trial Court.
Such an interlocutory order was passed below Exh. 5 in the said dispute.
2. It was held by the trial court that the dispute which was filed before it had alleged that the petitioner is occupying a flat as a member of the first respondent-original disputant society. The dispute proceeds to allege that Ambaji Niketan Cooperative Housing Society is registered under the Maharashtra Cooperative Societies Act, 1960 (for short Act). The structure/building belonging to the society stands on the land being C.T.S. No. 643, 643/1 to 8 admeasuring 811.40 sq.mtrs. There are 24 members of the society. The building of the society has been constructed in the year 1962. From 2009 onwards, the society was considering re-development of this property by pulling down the existing structure as it is old and requires continued repairs. In such circumstances, from January 2009 onwards in Special General Body meetings and Annual General Meetings, this issue was discussed and debated. Thereafter, resolutions were passed in terms of the discussion at the General body meetings. The resolution passed at the meeting held on 27th December 2009 resolves that the developer-respondent No. 2 shall be appointed for undertaking the re-development work. Accordingly, a power of attorney and development agreement was executed with the developer by the first respondent society. That is dated 29th June 2010. The Mumbai Municipal Corporation issued an IOD on 29th June 2010. Thereafter, the general body resolved that the members should vacate their premises and hand over vacant possession to the developers. The resolution of the general body meeting held on 12th November 2010 has been referred to and eventually after all approvals and permissions, what the petitioners have done is not to comply with the request and resolution of the society. The society states that it has made all compliances and in a special general body meeting held on 29th September 2011, a representative of the Deputy Registrar, M Ward, Konkan Bhavan remained present and in his presence the decision to re-develop the property was taken and the resolution came to be approved. In such circumstances and when the society has incurred expenses to the tune of Rs. 1,73,63,000/- and 19 members have vacated flats and handed over vacant and peaceful possession thereof to enable the developer to demolish the old building and re-develop the property, then, on account of non cooperation by the petitioner and four others, the project has been stalled.
3. In such a dispute the application for interim injunction has been moved and what has been done thereafter is to serve the copy of the dispute application and the papers and proceedings on the petitioner. The petitioner appeared and objected to grant of any interlocutory relief, much less, mandatory in nature. What has been done by the society has been objected by the petitioner on the ground that the Government Resolution dated 3rd January 2009 issued directives for re-development of the buildings of a cooperative housing society. In this case, the decision has been taken clandestinely and flouting these directives and resolutions of the Government the decision to redevelop the property is taken. It is not transparent and equally the documents in relation thereto are not genuine. The petitioner pointed out that the resolution passed in a meeting held on 28th April 2010 has not been passed properly and in terms of the bye-laws as the minutes, if perused, would show that the nine signatures have been illegally obtained. The signatures are of persons who have signed as proxies. There is no such provision in the bye-law There was no majority and particularly of 2/3rd which is required by the rules and bye-laws. Equally, when the agreement is dated 29th June 2010 and there is a reference to a power of attorney of that date itself, then, the documents do not confer any right in favour of the developer and particularly to undertake re-development work. There is non compliance with the directives issued u/s 79A of the Act, vide Government Resolution dated 3rd January 2009. For all these reasons and the entire decision and resolution being illegal and under challenge by the petitioner in a distinct dispute, then, all the more the interim injunction as prayed should not be granted.
4. After the petitioner filed his reply, the trial court heard both the original disputant-the first respondent herein (society) and second respondent developer and the petitioner and by the impugned order, has issued the aforesaid directives. On being satisfied that there is a strong prima facie case and the balance of convenience is in favour of the members of the society and if at this stage the work is obstructed that will cause serious prejudice to those who have already vacated their flats and handed over vacant and peaceful possession thereof. They are all residing in transit or temporary accommodation. They are awaiting fruits of redevelopment. The majority decision cannot be now defeated by raising any technical objections and, therefore, grant of interim mandatory orders is justified, according to the Trial Court.
5. It is this view of the trial court which has been confirmed by the lower appellate court leading to the filing of this petition.
6. Mr. Shah appearing for the petitioner firstly submitted that the trial court has virtually allowed the dispute at the interlocutory stage. It has passed sweeping mandatory orders and directions and has forced the petitioner to vacate the premises. The petitioner now cannot point out to the trial court that not only in the instant dispute but in the other dispute there are enough materials which will indicate that the re-development work has been undertaken illegally and cannot be allowed. The meetings and resolutions in that behalf are vitiated. The petitioner has enough oral and documentary evidence in his possession to show that the society trampled upon the rights of the petitioner and other minority members. The redevelopment is not in the interest of the members and equally the decisions in that behalf are not transparent and wholly one sided and arbitrary. There is non compliance with the orders and directions of the State Government. Further, these decisions are taken by a ad hoc body and it is not, therefore, permitted to take major policy decisions such as re-development of the building or property. For all these reasons, Mr. Shah submits that the interim orders are vitiated in law and should be set aside. There is no power in the trial court to appoint a court receiver and seeking his assistance for forcibly dispossessing all non cooperative members, like the petitioner. Moreover, there are serious lapses and deficiencies because what the developer has promised is not in terms of the development agreement and that would reduce the entitlement of the members. The TDR and FSI that will be generated is going to be exploited by the developer to his own advantage and benefit. The members will be deprived of the area assured under the Agreement. Further, there is no assurance forthcoming of expeditious completion of the project as well. For all these reasons, the impugned orders should be quashed and set aside.
7. On the other hand, the respondents have supported the orders under challenge by contending that the trial court as also the lower appellate court has rendered findings of fact relying upon the decisions taken at the general body meetings by the majority. These decisions are binding on the petitioner. The petitioner cannot refuse to abide by the same, when at this stage no material has been produced, which would vitiate the said decisions and resolutions. There is complete transparency and when the meeting was attended by the representative of the Deputy Registrar and in his presence, the decision of redevelopment is taken and finalised, then, all the more this is not a case to interfere in writ jurisdiction. The petition be dismissed is the submission of respondent''s Counsel.
8. With the assistance of the Learned Counsel appearing for parties, I have perused the orders under challenge. The orders have been passed on a dispute which was filed by the Cooperative Society seeking a declaration in its favour that the resolutions which are passed at the general body meetings and the decisions taken thereat are binding on the petitioner and that he has to comply therewith. Non compliance by the petitioner therewith has stalled the entire re-development work. The petitioner has refused to cooperate whilst others who are 19 in number have not questioned any of the decisions or resolutions of the society. The redevelopment work must commence because the building is old and dilapidated. It is a construction of 1962. Such an old building now and in future course of time would be further rendered unfit for habitation. It is in the interest of all that the property is re-developed.
9. The dispute is filed u/s 91 of the MCS Act, 1960. The powers that the Cooperative Court can exercise in these matters are enumerated in section 94 of the MCS Act. Sub-section 1 of Section 94 of the Act states that the Cooperative Court hearing a dispute shall have power to summon and enforce attendance of witnesses including the parties interested or any of them and to compel them to give evidence on oath, affirmation or affidavit and to compel the production of documents by the same means and as far as possible in the same manner, as is provided in the case of civil procedure code. The Cooperative Court is thus obliged to hear the dispute in the manner prescribed. The term manner prescribed means, prescribed by the Rules. Further powers that are conferred in the cooperative court are in terms of sub-sections 2, 3, 3A and 4 of section 94 of the Act. The dispute has to be decided in a summary manner, save as otherwise directed by State in any case or class of cases. The powers that are conferred in the cooperative court are enumerated by section 95. Further powers which are enumerated by section 95 enable the cooperative court to pass an order of attachment before the Award or orders or interlocutory orders. The said provision by sub-section 4 enable the Court in order to prevent ends of justice being defeated make such interlocutory orders referred to in sub-section 1 as may appear to be just and convenient.
10. The argument of the petitioner''s Advocate that these provisions by themselves will not make a cooperative court a civil court and would not enable it to pass orders of appointing Receivers because that power has not been conferred in the Cooperative Court.
11. Reliance is placed on the Rules and particularly Chapter VIII of MCS Rules, 1961. The rule 75 deals with reference of dispute. Then Rule 76 states that whenever a dispute is made to the Registrar or any matter is brought to his notice, he has to, on the basis of the relevant records and statements render his decision as to whether he is satisfied or not satisfied with the existence of dispute within the meaning of section 91.
12. Now, dispute or reference to cooperative court is dealt with by section 77 which reads thus:-
77. Disposal of a dispute or reference to Cooperative Court:-
(1) Where the Registrar is satisfied that there is a dispute, the Registrar may decide the dispute himself or refer it for disposal to a cooperative court having jurisdiction;
(2) Neither the Registrar nor the Cooperative Court shall take up for consideration any dispute, unless the parties concerned comply with the conditions of affixing the necessary court-fees for determination of dispute
13. Then comes Rule 77E which reads as under:-
77E Procedure for hearing and decision of disputes:-
(1) The Registrar or the Cooperative Court shall record in English, Marathi or Hindi the evidence of the parties to a dispute and the witnesses who attend. Upon the evidence so recorded and upon consideration of any documentary evidence produced by the parties a decision shall be given by him or it in writing. Such decision shall be pronounced in open court, either at once or as soon as may be practicable on some future day, of which due notice shall be given to the parties.
(2) Where neither party appears when the dispute is called on for hearing, the Registrar or the Cooperative Court may make an order that it be dismissed for default.
(3) Where the opponent appears and the disputant does not appear when the dispute is called on for hearing, the Registrar or the Court may make an order that the dispute be dismissed, unless the opponent admits the claim or a part thereof, in which case the Registrar or the Court, as the case may be, may make an order against the opponent upon such admission and where, part only of the claims is admitted, may dismiss the dispute so far as it relates to the remainder.
(4) Where the disputant appears and the opponent does not appear when the dispute is called on for hearing, then, if the Registrar or the Court is satisfied from the record and proceedings that the summons was duly served, the Registrar or the Court may proceed exparte. Where the summons is served by the officer of the Registrar or the Court, he shall make his report of service on oath.
(5) The Registrar or the Court may not ordinarily grant more than two adjournments to each party to the dispute at its request. The Registrar or the Court may, however, at his or its discretion grant such further adjournments on payment of such costs to the other side and such fees to the Registrar or the Court as the Registrar or the Court, as the case may be, may direct.
(6) Any party to a dispute may apply for and obtain a certified copy of any order, judgment or award made by the Registrar or the Court on payment of copying fees at the rate of 50 paise per 100 words in such order, judgment or award, whether in English, Marathi or Hindi.
14. By Rule 77F what has been provided is that the Cooperative Court must refer to summary procedure for resorting disputes. Rule 77F reads as under:-
77F:- Summary procedure for deciding disputes:-
(1) Subject to the provisions of sub-section (4) of Section 94, the following disputes, if the disputant so desires, shall be decided in the summary manner prescribed under this rule, namely :-
(a) any dispute for recovery of debt upon promissory note, hundi, bill of exchange or bond, with interest where agreed upon under such instrument or under the by-laws;
(b) any dispute for recovery of a fixed sum of money, in the nature of a debt, with or without interest, arising on a written contract, but other than penalty or on guarantee;
(c) any dispute for recovery of price of goods sold and delivered, where the rate, quality and quantity are admitted in writing;
(d) any dispute for recovery of dues payable in respect of a tenement by a member of a housing society towards contribution for construction of the tenements in respect of repayment of any loan, interest on loan, ground rent, local authority taxes, sinking fund, water charges, electric charges, repairs, maintenance and upkeep charges or charges for other services rendered by the society and the interest on such arrears payable under a written agreement or the by-laws or the tenancy regulations.
(2) In such cases, the disputants shall, in addition to the normal averments in Form P, make the following averments namely :-
(a) that the claim of the disputant is for recovery of liquidated sum of money only and no other relief beyond the scope of this rule is claimed in this dispute;
(b) that the disputant believes that there is no valid or bona fide defence to his claim;
(3) In such cases, the opponent shall not be entitled to defend the claim, unless he obtains leave from the Registrar or the cooperative Court so to defend as hereafter in this rule provided, and, in default of his obtaining such leave or of his appearance and defence in pursuance of such leave, the allegations in the petition shall be deemed to be admitted, and the disputant shall be entitled to the award in his favour as prayed and for such sum for costs as may be awarded by the Registrar or the Court.
(4) (I) Within ten days from the service of a notice calling upon the opponent to obtain leave from the Registrar or the Court, to appear and defend the claim, the opponent or such of the opponents as are interested in defending the claim shall apply to the Registrar or the Court, as the case may be, by an affidavit or a declaration for the leave, setting out the facts on which he relies and what triable issues are likely to arise. The opponent shall in such application disclose all the documents supporting his contention and as far as possible attach copies of such documents which he considers important from his point of view. A copy of such application shall be served on the disputant and he shall have a right to file a rejoinder in the form of an affidavit or declaration and place before the deciding authority such material as in his opinion supports his contentions.
(ii) The Registrar or the Court, on reading the affidavits and declarations and on hearing the parties and their pleading and considering the documents relied on and produced by them, may pass an award or grant leave to defend to such of the opponents, unconditionally or upon such conditions, as the deciding authority may think fit under the circumstances and on facts of the case. The Registrar or the Court granting leave defend shall also give directions and prescribe time limit for filing the written statement and fix the date for hearing. Leave may be granted to some and may be refused to other opponents. If leave is granted and not complied with by any opponent, the deciding authority may pass an award against him, as if he had not been granted leave.
(iii) If the conditions on which leave to defend is granted are not complied with by any opponent, the Registrar or the court may pass an award against him, as if he had not been granted leave.
(iv) The Registrar or the Court may, for sufficient case, excuse the delay in applying for leave to defend any case.
(v) The Registrar or the Court may, under special circumstances set aside the award, and if necessary stay or set aside execution, and may give leave to the opponent to appear and defend the dispute, if it seems reasonable to the deciding authority so to do, and on such terms as it thinks fit.
15. Then comes Rule 78 which provides for summonses, notices and fixing of date, place etc. in connection with a dispute. The powers to deal with investigation claims and objections against any attachment are enumerated vide Rule 79 to 81. Thereafter, Rules 82 and 83 deal with proclamation, prohibiting private transfers of property and procedure for execution of Awards. The execution of Awards or orders in special cases has been dealt with by Rule 84 and Rule 85 provides for transfer of property which cannot be sold.
16. Thus, there is some substance in the contention of Mr. Shah appearing for petitioner that it is doubtful whether the cooperative court while passing an interlocutory order in the dispute could have proceeded to appoint a Receiver. It has been brought to my notice by relying upon several decisions of this Court that proceedings before trial court are not suit before civil court. That cannot partake the character of the suit because of the peculiar nature of the proceedings enumerated from section 91 onwards. The Learned Counsel relies upon section 93 and sub-section 2 thereof to urge that the cooperative court has been conferred with limited powers and it cannot, therefore, become a civil court. The Constitution of cooperative court has been dealt with by section 91A and section 92 provides for limitation. The proceedings therefore are for a limited purpose termed as a suit and, therefore, all powers which are conferred in a civil court are not conferred in the cooperative court. In this behalf a reference can usefully be made to a judgment rendered by this Court in the case of Balkrishna Vs. Jalgaon Peoples Cooperative Bank reported in 1998 (2) Mah.L.J. 147 and equally to another judgment in Murlaidhar Datoba Nimanka and Ors. Vs. Harish Balkrishna Latane & Ors., reported in 2003 (4) Mah. J.J. 196. Both these judgements have been referred by me in the case of Tarkunde Hotels Pvt. Ltd. Vs. Rupee Coop. Bank Ltd. reported in 2011 (5) Mah. J.J. 812. Following them, I have held as under:-
19] Reliance placed by Mr. Kumbhakoni on the decisions reported in 2003 (6) BCR 153 (Murlidhar Datoba Nimanka and Ors. Vs. Harish Balkrushna Latane & Ors), would go to show that the judgment reiterates the principle that Cooperative Courts do not enjoy powers u/s 38 and 39 of CPC in the light of the powers conferred by Section 95 of the MCS Act. Further section 95(4) deal with powers of Cooperative Court to pass interlocutory orders as may appear just and convenient to prevent justice being defeated during the pendency of proceedings. However, the learned Single Judge of this Court set aside the order of the cooperative court passed under Order 39 rule 11 of the CPC striking out the defence of the petitioner before this Court, by holding that this provision in inapplicable. There is no dispute with this proposition of law that all powers of civil court are not conferred on the cooperative court. Sections 91, 92, 93, 94 and 95 themselves make this position clear. As far as section 91 is concerned, that is a provision which is part of Chapter IX entitled "settlement of disputes". Sub-section 1 thereof opens with non obstante clause and if all other conditions as stipulated in the provision are satisfied, then, the dispute must go before the cooperative court. That is as far as competency of cooperative court. While that may be so, but section 92 throws light on the Intention of Law Makers and the Legislature with reference to sections 91 and 91A provides that the limitation would be, notwithstanding, anything contained in the Limitation Act, 1963 but subject to the specific provisions in the MCS Act. At the same time, section 93 providing for transfer of disputes from one cooperative court to another and suspension of proceedings in certain cases, makes the position clear and if any reference is needed, sub-section 2 of the said provision is an answer. The procedure for settlement of dispute and powers of cooperative court is set out in section 94 and limited powers that are conferred on civil court by CPC have been conferred on the cooperative court. It is well settled that CPC is partly procedural and partly substantive. It is not as if the cooperative court becomes a civil court by virtue of sections 94 and 95. If that be so, then, it was unnecessary to make provisions for attachment before the award and an interlocutory order vide section 95. Similarly, section 96 speaks about the decision of cooperative court. Section 97 provides for an appeal. If section 97 had not been worded in the manner in which it is so worded, then, interlocutory orders of the cooperative court would not have become appealable. Legislature, therefore, was conscious of the fact that a civil court which tries a civil suit and renders both, an order and decree, which are capable of being challenged in appeals, makes a separate provision for appeal from order and appeal from decrees. Accordingly, while engrafting some of these aspects into MCS Act, the Legislature provided for remedy of appeals to challenge both orders. Similarly, as far as recovery of monies are concerned, section 98 makes the aspect clear that orders passed by the authorities or the cooperative court shall, if not carried out, be deemed to be a decree of a civil court and shall be executed in the same manner as decree of such court. Therefore, at separate stages, the applicability of CPC albeit to a limited extent has been provided in the MCS Act. If that be the intent and purpose and if these provisions are read with the MCS Rules, then, it is absolutely clear that such of the provisions which enable the Cooperative Court to inherently exercise its powers to do justice have been engrafted and included. Their applicability is not in any manner ruled out. However, when it comes to section 10 of CPC, it is more than clear that one cannot lose sight of the fact that section 10 cannot be invoked by applying the tests as if the proceedings before the cooperative court filed by way of disputes are akin to a suit in a civil court. The CPC itself makes it clear in Part I that Courts subject to the provisions contained in the CPC have jurisdiction to try all suits of civil nature excepting suits of which cognisance is either expressly or impliedly barred. Prior thereto sections 3 to 5 speak about applicability of CPC to proceedings before other Courts. The proceedings may be civil in nature but that does not mean that the Court trying them is a civil court and the proceedings are a "suit" within the meaning of CPC. A right to bring in a suit is an inherent right vested in the litigant and, therefore, while clarifying as to what would be the jurisdiction of the Civil court to try suits in section 9 read with the explanation, it would at once become clear by section 10 that the Court, which is a civil court, is mandated not to proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court having jurisdiction to grant the relief claimed or in any court beyond the limits of India, established or continued by the Central Government and having like jurisdiction or before the Supreme Court. The sweep of power u/s 10 can by no means be read into the MCS Act and particularly section 91 to 98 thereof. The civil court''s power to stay trial of subsequently instituted suits is thus available to the civil court. It is not specifically conferred on the cooperative court.
17. To my mind, therefore, it is very doubtful as to whether in the given facts and circumstances and looking at the limited nature of the powers that are conferred in the cooperative court, it could have proceeded to appoint a receiver as a power to appoint receiver, conferred by the substantive provisions of the CPC has not been conferred on the cooperative court. In other words, it is not vested with all such powers as are conferred in a civil court while trying civil suit and executing its decree. It is urged that the words "such interlocutory order as are just and convenient" appearing in Section 95(4) would enable the cooperative court to pass an order appointing a Receiver of the immovable property. Reliance is placed on Section 4, section 94 and section 141 of the CPC to urge that a Receiver can be appointed in proceedings other than a suit. Reliance is also placed on the commentary on CPC by Mulla, 17th Edition Vol. 4 B.M. Prasad and some decisions referred therein to drive home the above point. However, the authors themselves have clarified that the principle that a Receiver can be appointed in proceedings other than a suit is not applicable to certain proceedings. Its application must be seen in the context of the proceedings before a court. In
11. This becomes apparent when a comparison is made between the phraseology used in Order XL Rule 1 and the words of section 503 of the old Code. Section 503 provided as follows:-
Where it appears to the Court to be necessary for the realisation, preservation or better custody or management of property, moveable or immoveable, the subject of a suit or attachment.
Thus according to Section 503 C.P.C., as it stood, the court could appoint a Receiver only in respect of the subject of a suit or attachment. When the provisions of the Code were amended the words "subject of a suit or attachment" were deleted by the Legislature. This is significant. This shows that the legislature thought it fit to remove the restraint which formerly existed in respect of the power of the court to appoint a Receiver only in respect of properties which were the subject matter of a suit or attachment.
12. The question arose before a Division Bench of the Bombay High Court consisting of Macklin and Gajendragadkar, JJ in the case of Bai Sakri Vs. Bai Dhani, AIR 1948 Bom 139 wherein Their Lordships were pleased to hold that:-
The omission of the words "the subject of a suit or attachment" leaves the rule in extremely general terms and so far as sub-rule (1) is concerned there is nothing whatever in the rule to suggest that a receiver could not be appointed in any proceeding that was before the Court. It is, of course, necessary that there should be some proceeding before the Court, and a person who has no other business in the Court at all cannot come to the court and ask the court to appoint the receiver and then go away But so far as sub-rule (1) is concerned there is nothing to suggest that an application to sue as pauper is not the sort of proceeding in which receiver could be appointed. It is true that sub-rule (2) refers to parties to the suit, but we do not think that these words in sub-rule (2) can be allowed to control the general terms of sub-rule (1) in view of the fact that there has been a deliberate amendment of the old rule and the principal part of the amendment was to omit the only words which would limit proceedings before the Court to suits or attachment.
Their Lordships, therefore, held that where an application has been made for leave to sue in forma pauperis, a Receiver could be appointed under Order XL Rule Order XL Rule 1 pending decision of the application.
13. We are in respectful agreement with the decision of the Bombay High Court in the above noted case. The question also came up for consideration in another connection before a Full Bench of this Court in the case of
Jurisdiction to protect property pending the ascertainment of rights is inherent in any court which once has cognisance in any form of a dispute involving the execution of a trust or the administration of assets, and the court has, not merely jurisdiction, but a duty to safeguard them. This being so a receiver can be appointed in proceedings other than suits.
14. The question can be considered from another standpoint. An application for permission to sue in forma pauperis is in the nature of a plaint. It contains a recital of the facts constituting the cause of action, the subject matter of the claim and the reliefs prayed for in that regard. In fact, Rule 2 of Order XXXIII provides that: "Every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits..... and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.
Therefore, a dispute may be a proceeding before a court but whether the legislature intended that all powers of a civil court namely, procedural and substantive, have been conferred on a cooperative court is an aspect which is equally crucial. A power to appoint a Receiver is not merely procedural. In CPC Section 94 is titled as Supplemental Proceedings. That provision states that in order to prevent the ends of justice being defeated, the Court may, if it is so prescribed, appoint a Receiver of any property and enforce the performance of his duties by attaching and selling his property. The source of power to grant interim relief is u/s 94. However, exercise of that power to grant interim relief is under section94. However, exercise of that power can only be done if circumstances of the case falls under the Rules (See
19(18) Where it appears to the Tribunal to be just and convenient, the Tribunal may, by order:-
(a) appoint a receiver of any property, whether before or after grant of certificate for recovery of debt;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver;
(d) confer upon the receiver all such powers, as to bringing and defending suits in the courts or filing and defending applications before the Tribunal and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Tribunal thinks fit; and
(e) appoint a Commissioner for preparation of an inventory of the properties of the defendant or for the sale thereof.
Therefore, such powers are not to be assumed unless the test laid down by the Hon''ble Supreme Court is satisfied or else every court would proceed on the premise that by its very existence and the power to render justice all powers such as appointment of Receiver, to issue injunction or order attachment of properties are incidental and inherent in it and can be exercised without any specific provision of law under which it is established or constituted conferring them. If the broad premise or basis is taken as the source of power then a specific provision conferring power to pass a particular interlocutory order was unnecessary.
18. However, as far as other interlocutory reliefs are concerned that the cooperative court could have in this case granted and that is not seriously disputed. If the cooperative court could have issued an injunction as claimed by the society which was even in mandatory terms, then, merely on the ground that it has erred in appointing Receiver and that order has been confirmed by the lower appellate court, to my mind, would not be enough to set aside the orders under challenge.
19. I have, therefore, scrutinised the orders under challenge so as to find out as to whether interim orders of the mandatory nature can be passed by the trial court in the facts and circumstances of this case. The trial court has been conferred with the powers to pass interim orders. Sub-section 4 of Section 95 which has been relied upon to enable the trial court to pass an order of the nature passed at a interlocutory stage. However, before the trial court could have passed that order, it must record its satisfaction that an interim order of mandatory nature is required to be passed or not.
20. In the case of
10. The trial court gave an interim mandatory injunction directing the fourth respondent not to continue in possession. There could be no doubt that the courts can grant such interlocutory mandatory injunction in certain special circumstances. It would be very useful to refer to some of the English cases which have given some guidelines in granting such injunctions.
13. As far the cases decided in India we may note the following cases.
In one of the earliest cases in Rasul Karim & Anr. v. Pirubhai Amirbhai, ILR 1914 38 Bom. 381, Beaman, J. was of the view that the court''s in India have no power to issue a temporary injunction in a mandatory form but Shah, J. who constituted a Bench in that case did not agree with Beaman, J. in this view. However, in a later Division Bench judgment in Champsey Bhimji & Co. v. The Jamna Flour Mills Co. Ltd., ILR 191416 Bom. 566, two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court. In M. Kandaswami Chetty V.P. Subramania Chetty, ILR 191841 Mad. 208, a Division Bench of the Madras High Court held that court''s in India have the power by virtue of Order 39 Rule 2 of the CPC to issue temporary injunction in a mandatory form and differed from Beaman''s view accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. (supra). In Israil v. Shamser Rahman, ILR 191441 Cal. 436, it was held that the High Court was competent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the Court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held that the Court should consider as to where the balance of convenience lie and whether it is desirable that the status quo should be maintained. While accepting that it is not possible to say that in no circumstances will the Courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in
14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
15. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.
21. From a bare perusal of these tests what appears to my mind is that the trial court has in the present case adverted to the fact that the Government Resolution dated 3rd January 2009 sets out the procedure of re-development of old building of cooperative societies. That has been referred to by the trial court and what has also been considered by it is the argument of the petitioners that such resolution has been completely given a go bye and rather brushed aside in this case. After referring to this argument in paras 15 and 16 of this order, what the trial court has done is to refer to the request which has been received from some members. That request was to call for a general body meeting wherein matters of re-development were to be discussed. The Chairman of the General Body after reasonably long period called a general body meeting on 5th April 2009. The matters of re-development were discussed in that meeting. It was first decided to obtain conveyance of the property in favour of the disputant society. Accordingly, an expert M/s. Sawant Rane Associates were appointed for that purpose. The minutes of the meeting held on 5th April 2009 have then been extensively referred to by the trial court. At this meeting 24 members of the society were present. The trial court has then referred to the fact that by this resolution the decision to re-develop the property was not taken finally but a possibility of the same was being explored thereat. Thereafter, there is a general body meeting held on 9th August 2009. On 9th August 2009 that meeting was held. The Agenda for the said meeting and its minutes were placed on record of the trial court. The trial court has adverted to the fact that in the records there is no reference to any agenda or any item with regard to redevelopment. However, the meeting commenced and ended even at that meeting, there was no final decision. There was no discussion leave alone final decision. Thereafter, there was Annual General Meeting of the society on 24th August 2009. In that, there was extensive discussion and debate on this point but ultimately the meeting ended without any resolutions being passed. However, all preliminary steps were agreed to be taken. Thereafter, there was a meeting held on 17th September 2009, which is styled as urgent general body meeting. That meeting had on its Agenda Item the issue of re-development. Thereafter, this meeting was postponed upto 4th December 2009. At that time, there were only proposals received from some developer. This meeting was attended by 20 persons. Thereafter, the trial court refers to Government Resolution dated 3rd January 2009 and holds that out of 24 members more than 3/4th were present and the majority took a decision that the property should be re-developed. That decision was taken at an adjourned meeting convened on 18th December 2009. That meeting passed the final resolution for re-development. Seventeen members were present at that meeting. At that meeting what has been placed before the house was the written approval of 18 members and oral approval by two members. Thus, out of 24 members 20 had conveyed their approval and concurrence. M/s. Bholenath Developers were therefore appointed in terms of the majority resolution. This decision was ratified in a meeting held on 27th January 2010. There are further meetings held and which have been referred to viz., on 26th January 2010, 29th April 2010, when 21 members resolved to take such steps as would enable the society to re-develop its property. All these events have been extensively referred to in the detailed order of the trial court. The necessary records were summoned and perused by the trial court. The further meetings which were held in April 2011, June 2011 and September 2011 are also referred to which deal with consequential steps so as to implement the decision and resolution of re-development. Thus, in para 26 of its order, the trial court has recorded a finding that prima facie the decision to redevelop the property of the society appears to be legal and transparent. The trial court has referred to the objections of the petitioner that there are certain bogus and forged signatures. However, when the records indicate a decision taken not once but on more than one occasion, by a over-whelming majority, then, the trial court thought it fit not to discard that resolution and decision at the interlocutory stage. The trial court, therefore, held that a strong prima facie case has been made out for grant of the reliefs. Balance of convenience will be in favour of all those who have vacated the premises. The decision is taken on 27th September 2011 whereunder out of 24 members 23 have handed over the possession and moved or shifted to transit accommodation. In these circumstances, when there is a majority decision and only one person is resisting the redevelopment work, then, the trial court concluded that this is a fit case for grant of the reliefs. While it is true that, that part of the order appointing a court receiver cannot be sustained, but it is not as if the trial court could not have made any interlocutory order and that is not even the objection raised before me. In such circumstances, when this interlocutory order with detailed reasoning was placed before the lower appellate court, it not only adverted to the details but has arrived at its independent conclusion that the society-original disputant has satisfied the court that the redevelopment agreement was a decision of the majority and that balance of convenience is also in favour of society In the order of the lower appellate court what has been referred to in para 8 is that the decision was taken at the special general body meeting. Later on there is a reference to the representative of the Deputy Registrar who has attended the meeting. Therefore, out of 22 members were present, 18 resolved that the re-development work should be undertaken, then, any technical flaw or omission will not vitiate the decision and resolution of the meeting of the general body, is a conclusion which has been reached to reinforce and support the order of the trial court.
22. To my mind, therefore, the tests laid down in the decision of the Supreme Court in the case of Cawasjee Warden are satisfied. This is a fit case where overwhelming majority of persons who are members of the cooperative society may suffer hardships and the entire re-development work will be stalled and/or obstructed by non cooperative members. The trial court is empowered in law to remove such obstacles and hurdles in smooth functioning of society and when there is compliance with the resolution dated 3rd January 2009. When authorities like Registrar or its delegate have deputed officials from his office to remain present and supervise and monitor the meetings of the general body, where the redevelopment projects are discussed, then, all the more transparency and fairness which is necessitated as a test, has been complied with. For all these reasons to my mind, this is not a fit case where the concurrent orders recording tentative and prima facie satisfaction of the courts below require no interference in writ jurisdiction, particularly with the aforementioned clarifications and modifications.
23. In the result, the petition fails but instead of there being a receiver as directed in the trial court''s order, there will be an interim mandatory injunction directing the petitioner in this petition to remove himself and all his belongings from the flat in his possession i.e. Flat No. 14 first floor of the building within eight weeks from today. If the petitioner fails to remove himself as directed, the society as also the developer is free to take such assistance as is necessary including from the local police station to ensure the vacating of premises by the petitioner. Needless therefore to direct that as and when the petitioner fails to comply with this direction within the time stipulated above, the society can approach the nearest police station and seek its assistance for execution and implementation of this order in addition to usual modes prescribed by law. The order passed by the Courts below stands substituted in the above terms. In other words, while maintaining the direction which is mandatory in nature for vacating the premises by petitioner No. 1, the other direction for appointment of private receiver is set aside. No costs. This order has been passed also because of the fact that the respondent No. 2 has filed an affidavit in this Court in which there are undertakings given to this Court. This affidavit is taken on record and marked "X" for identification. Each of the statements therein are accepted as undertakings to this Court. By virtue of the clarifications given and also the undertakings all the more the interest of members of the society is protected. The decision to redevelop the property is in the interest of the society and for the benefit of its members and when large area is being ensured so also the entitlement and rights of the members being protected, then, all the more this is not a case for interference in my discretionary and equitable jurisdiction under Articles 226 and 227 of Constitution of India. Petition is dismissed. No costs.
